International Law - Pragmatism

The fourth core belief set in the American national ideology is
pragmatism, that is, resort to an applied practical approach to foreign
policy decisions. It stems from the realization that Americans built a
country out of the wilderness, created their own government institutions,
and achieved more economic and ideological success than any other people
in modern history. American pragmatism thus resembles an engineering
approach to foreign policy problem solving. U.S. involvement is often
viewed as working to make things politically stable and morally right. The
assumption is that right answers do exist for world problems, and the U.S.
response contains those right answers. Complications arise in
international relations when other governments do not perceive these
problems in the same way as the United States. As a consequence, the
preferred American approach in seeking solutions for law-related foreign
policy issues is to deconstruct the problem, much as an engineer would use
a blueprint to break tasks down into sub-problems. A mechanical solution
is then devised for each legal component of a problem, while all the time
keeping in mind the political implications. It bears mentioning that in
this process one runs the risk of losing sight of the problem's
larger legal context in order to protect perceived political interests
inherent in each sub-problem. When this occurs, the result can be the
substitution of means for ends and the tendency to improvise solutions
that are unlikely to lead to resolution of the greater problem.

Resort to pragmatism means that legal situations are dealt with on an
individual basis, as opposed to long-term planning. Pragmatist
policymakers tend to evaluate policies based on whether they solve the
problem, rather than on what is legally permissible, ethically required,
or even morally acceptable. In this regard, reliance on pragmatism invites
U.S. decision makers to assert a strong realist approach in foreign
policy. The theory of realism involves application of power politics to
international relations. Realists are generally skeptical about human
nature and are willing to accept that governments will inevitably act
aggressively in their foreign policy. Hence, governments must pursue and
protect their national interests, including use of force if deemed
necessary. Realists advocate the prudent management of economic and
military power. In sum, for U.S. foreign policy realists, the main
objectives that the government should advance in its international
relations are its military security and economic prosperity, that is, its
national interests. Legal considerations are pushed aside, save insofar as
they contribute to securing military security and economic objectives.
Hence, when such realist tendencies occur, the likelihood arises that
foreign policy decisions might compromise or circumvent international
legal rules for the sake of obtaining perceived direct political gains. To
attain greater short-term benefits for U.S. national interests, a strictly
pragmatic approach might conclude that international legal commitments
should be short-circuited or overridden. Unilateralist political ambitions
are given higher value than multilateral legal obligations.

Resort to pragmatic foreign policies by the United States frequently
occurs in situations involving the use of force abroad, which often
produce fundamental conflicts with legalism, especially in terms of moral
constraints and idealistic principles. When that occurs, historical
experience suggests that pragmatism usually prevails. This can be seen in
the American attitude toward policies of intervention abroad and
government rationales devised to politically support those actions. To put
this into legal perspective, international law holds that military
intervention by one state into the territory of another state is flatly
prohibited, except under four special circumstances: (1) if there is a
treaty agreement permitting such intervention between the two states; (2)
if the intervention comes at the genuine invitation of the legitimate
government of a state; (3) if the intervention is undertaken as part of a
collective security action involving an international organization; and,
more controversially, (4) if the intervention is done for humanitarian
purposes. Throughout most of its history, the United States chose not to
rely on these legal justifications to substantiate the legitimacy of its
intervention actions abroad.

Historically, the legal logic used by the United States to support foreign
intervention is couched in the articulation of presidential doctrines.
These policy proclamations, which significantly shape U.S. legal attitudes
toward the permissibility of international intervention, are greatly
influenced by pragmatic motivations but increasingly assume ideological
traits irrespective of relevant legal considerations. The Monroe Doctrine
and its Roosevelt Corollary were historically the most widely applied of
these doctrines. The Cold War markedly affected U.S. policy attitudes and
resurrected American willingness to engage in military intervention
abroad. Consequently, during the last half of the twentieth century the
U.S. perception of aggression (that is, legally impermissible
intervention) became framed in terms of evaluating and containing radical
communist regimes throughout the Third World generally and the Western
Hemisphere in particular. U.S. policymakers believed radical influence
upon the domestic politics or governmental structure of a state produced
regional instability and therefore plowed fertile ground for that country
to become a victim of communist aggression. Concerns about the threat of
communist expansion worldwide resurrected and reactivated the fundamental
policy motive contained in the Monroe Doctrine—intervention for
self-defense—and fostered its application through a number of
post–World War II policy doctrines.

The first doctrine of the post–World War II era, the Truman
Doctrine, was asserted in 1947 and committed the United States to a global
policy aimed at stopping the spread of communism. The Truman Doctrine was
designed specifically to send $400 million to help Greece and Turkey put
down communist insurgencies that threatened those governments'
stability. The lawfulness of this aid was not at issue, nor did the United
States intervene militarily. The scope of U.S. anticommunist assistance
was expanded in January 1957 when President Dwight D. Eisenhower formally
asked Congress to authorize the use of armed force to assist any country
that requested help against communist aggression. In March 1957, Congress
ratified the Eisenhower Doctrine, which became the legal rationale for
U.S. intervention into the Middle East, where radical nationalism had
sharpened in the aftermath of the Suez crisis of 1956. The Eisenhower
Doctrine assumed Realpolitik policy objectives and affirmed U.S.
determination to become the leading power in the region. The U.S.
government invoked the Eisenhower Doctrine only twice, and in neither case
was it in response to external aggression. In April 1957, Washington
dispatched emergency aid to Jordan, which was threatened by an abortive
coup. In January 1958, U.S. marines landed in Lebanon to support the
Chamoun government, which was in the midst of a civil war. Importantly, in
both cases, U.S. assistance had been formally invited by the legitimate
government in power, making the action lawful notwithstanding the obvious
Realpolitik ramifications.

The administration of President Lyndon B. Johnson produced a new
intervention doctrine for U.S. foreign policy. The Johnson Doctrine
derived from the episode in April 1965 when the United States sent 21,000
troops into the Dominican Republic to restore civil order on the pretext
of preventing a "second Cuba" from emerging in the
hemisphere. The principal legal rationale for the action was self-defense
(more accurately, exaggerated national security concerns) against the
perceived threat of communism being established in the Dominican Republic.
Shortly thereafter, this doctrine was applied globally to shore up
justification for U.S. military assistance to the government of South
Vietnam in the face of the communist aggression of North Vietnam and
China.

The Vietnam War imbroglio produced a new doctrine for U.S. foreign policy
toward regions threatened by communist aggression. By the late 1960s, the
enormous costs of the conflict in lives and dollars, coupled with the
eruption of strong domestic antiwar sentiment, demonstrated to the Nixon
administration the need to shift the American approach to military
assistance. The new policy, articulated in 1969, aimed to transfer
immediate self-defense responsibilities to the South Vietnamese indigenous
forces. While the United States would continue to bear responsibility for
deterring nuclear and conventional war, the burden for deterring localized
conflicts would shift to the countries involved. This so-called Nixon
Doctrine was later broadened to encompass the entire globe. As with other
American doctrines, considerations of international law were largely
omitted from the policy calculus. The change in military assistance policy
was not done in response to international criticisms of U.S. military
intervention into Vietnam or the widely reported American violations of
the laws of war. Rather it was done to counter domestic public discontent
and to produce more opportunity for an early withdrawal of U.S. forces
from Southeast Asia. These were actions motivated by pragmatism and
Realpolitik, not for reasons of legalism or moral commitment.

The administration of President Jimmy Carter revived the expansion of U.S.
military commitment to the Middle East. On 29 December 1979 the Soviet
Union invaded and seized control of Afghanistan. The Carter administration
reacted by withdrawing the SALT II Treaty from Senate consideration,
increasing aid to Pakistan, cutting off grain sales to the Soviet Union,
and calling for a boycott of the 1980 summer Olympic Games in Moscow. More
provocative was the president's proclamation in January 1980 that
warned the Soviets to halt their expansion into the Middle East. In
effect, Carter declared that the Soviet invasion of Afghanistan threatened
the Persian Gulf and Indian Ocean oil supply pipelines and asserted that
the United States would act alone if necessary to protect Middle East oil
from Soviet takeover. Thus, the Carter Doctrine identified the continued
flow of oil from the Persian Gulf as a paramount strategic interest of the
United States, to be defended with U.S. military force if necessary. In so
doing, it broke with the Nixon Doctrine, which called for partnership in
preference to the unilateral approach in the Truman, Eisenhower, and
Johnson doctrines. The United States in this case responded to an unlawful
act of foreign intervention by asserting the strategic necessity—as
opposed to the predicate of lawfulness—of military assistance to a
victim state. Again, preeminence was given to motivations of American
exceptionalism and pragmatism over normative elements found in policies of
legalism, liberalism, and moralism.

Finally, during the 1980s, President Ronald Reagan articulated his own
policy dictum to reinforce the central theme of halting the spread of
communism. The Reagan administration expanded military and economic
assistance to friendly Third World governments battling leftist
insurgencies and actively supported guerrilla movements and other
opposition forces in countries with leftist governments. This policy,
which became known as the Reagan Doctrine, was applied with particular
zeal in Latin America. Central to these efforts was supplying military and
economic aid to the government of El Salvador in its civil war against the
Farabundo Marti National Liberation Front and in organizing, funding, and
training the contras, a guerrilla force of 15,000 who sought to overthrow
the Marxist Sandinista government in neighboring Nicaragua. Support for
such "freedom fighters" was also extended to Angola,
Afghanistan, and Cambodia to assist those irregular forces in their
struggles against totalitarian leftist regimes. In these ways the Reagan
Doctrine can be viewed as a natural corollary of the Nixon Doctrine,
albeit one whose permissibility under international law is seriously in
question. Such assistance to rebel insurgents is generally viewed as
unlawful intervention into the internal affairs of another state and is
prohibited under international legal rules, irrespective of the
ideological character of the ruling government.

Other U.S. policies highlight the salience of pragmatism over legalism.
For example, even though the Reagan administration was adamant about not
dealing with terrorists, in 1985 it agreed to sell weapons to Iran in the
hope that this might persuade Islamic fundamentalists holding hostages in
Lebanon to release them. Interestingly, the monies from the arms sales
went to support of the contras in their war against the Nicaraguan
Sandinistas. Similarly, the invasion of Grenada in 1983 (on the pretext of
rescuing one thousand American medical students on the island) and the
bombing of Libya in 1986 (on the pretext of acting in self-defense against
Libya for its bombing of a West Berlin discotheque) further eroded the
respect for law by the Reagan administration in its foreign policy.
Although praised by Congress and the American pubic, these actions were
widely condemned by the international community for their shaky legal
underpinnings. Propelled by ideological concerns, U.S. foreign policy was
characterized by American pragmatism, self-virtuosity, and unilateralism
exercised at the expense of the legal, moral, and liberal considerations
that embody the fundamental legal principle of noninterference in the
internal affairs of other states. Throughout the Cold War years,
presidential doctrines articulated policies in which international legal
considerations were conspicuously omitted, as unilateralist ideology
assumed paramount importance.

Since the end of the Cold War, pragmatism in U.S. foreign policy has
remained ascendant over legal and moral considerations when issues of
using armed force are involved. Even so moral, liberal, and legal
considerations have been integrated more and more to explain and justify
U.S. rationales for using armed force abroad. There has evolved the need
to advocate normative arguments for American actions to foster greater
international acceptance of the lawfulness of that policy.

For President George H. W. Bush, the invasion of Panama and the Gulf War
were principal U.S. actions involving use of force. In December 1989, U.S.
armed forces intervened militarily into Panama in Operation Just Cause.
The Bush administration provided three pragmatic reasons, grounded in
nationalist considerations, to justify the action: to keep the Panama
Canal open; on grounds of self-defense, to protect the lives of U.S.
citizens living there; and to apprehend the self-proclaimed
"maximum leader," General Manuel Noriega, so that he could
be put on trial for alleged violations of U.S. narcotics laws. One liberal
objective was given in support of the action: to restore democracy in
Panama. None of these directly relate to international law, and, in fact,
a joint communiqué of reservations and understandings appended to
the Panama Canal Treaties of 1977 flatly renounces any right of the United
States to intrude into the internal affairs of Panama. The legal rule of
nonintervention into Panama was overridden for perceived pragmatic
short-term objectives of U.S. policy interests, to protect the canal and
to seize Noriega.

The Gulf War of 1991 was the first major military conflict involving U.S.
intervention after the Cold War. Importantly, it came not as a unilateral
U.S. response to Iraq's aggressive conquest of Kuwait in August
1990. Rather, American military action was taken as part of a collective
responsibility, formally approved in seventeen resolutions by the UN
Security Council in order to force Saddam Hussein's forces to quit
their unlawful occupation of the Persian Gulf sheikdom. Sponsored by the
United States, Security Council Resolution 678, adopted on 29 November
1990, asserted that unless Iraq unconditionally withdrew from Kuwait and
released all foreigners by 15 January 1991, UN member states would be
allowed to "use all necessary means to restore the international
peace and security in the area." On 16 January, UN efforts to deal
with Iraq culminated in a U.S.-led coalition of twenty-eight countries
instigating an intense air attack against Iraq. On 23 February a massive
ground assault was launched to eject Iraqi troops forcibly from Kuwait.
Four days later the war ended.

While American motivations for prosecuting the war against Iraq were more
strategic than moral—that is, to maintain secure access to oil
resources in the Persian Gulf, to prevent Iraq from controlling nearly
one-half of the world's known oil reserves, and to preclude Iraq
from building up a military machine that included weapons of mass
destruction—a strong case can be made for the lawfulness of its
action. The United States might have acted unilaterally to oust Saddam
Hussein, but it did not. Resort to the Security Council (and obtaining its
concurrence) was essential for substantiating the legitimacy of the U.S.
use of force. In this instance U.S. military intervention was implemented
legitimately through multilateralism (through an international coalition)
and attained the aims of moralism (to reverse aggression) as well as
liberalism (to install greater respect for democracy and human rights) and
legalism (to proceed through universally accepted UN procedures for
dealing with aggressor states).

At the time, many analysts even agreed that the Gulf War served well the
prospects for a "new world order." In the succeeding years,
such an order did not come to pass, as violence between states became
supplanted by the rise of violence between ethnic and tribal groups within
states. To appreciate the tragedy of this point, one only has to think of
the civil wars in Somalia (1992–1993), Burundi (1993), Rwanda
(1994), Bosnia (1992–1995), Sierra Leone (1999–2000),
Serbia-Kosovo (1999), and the Congo (2000–2001) that killed or
displaced more than five million people over a decade.

Pragmatism affects U.S. foreign policy in several ways. It alleviates the
requirement that American decision makers only make policy that is
grounded in strict legal principles or ideological tenets. Policy is not
wedded to philosophical or moral stricture. It can be decided with greater
flexibility, based mainly on political perceptions as opposed to rigid
normative considerations. Further, U.S. foreign policy tends to be
reactive rather than proactive. In its international dealings the United
States reacts to certain events as they occur rather than anticipating
that they will occur. In this sense pragmatism contributes to the American
tendency to prefer short-term national goals over long-term international
solutions—an approach that invites inconsistency in foreign policy
actions. Pragmatism can also blind policy-makers to the more idealistic
sides of liberalism, especially with regard to respect for human rights.
One only has to recall that the United States has supported a number of
governments that had egregious human rights records in the treatment of
their own citizens, to wit, Anastasio Somoza in Nicaragua, Rafael Trujillo
in the Dominican Republic, Fulgencio Batista in Cuba, the shah in Iran,
Duarte in El Salvador, Ferdinand Marcos in the Philippines, and the
minority white government in South Africa.

One can similarly conclude that when vital interests are perceived to be
at stake, U.S. officials sometimes bend legal rules to justify their
policies rather than conform their actions strictly to the letter of the
law. In 1998 the Clinton administration fired cruise missiles against Iraq
in retaliation for Saddam Hussein's refusal to permit UN
inspections of suspected chemical and biological weapons facilities. More
missiles were fired in 1998 against Sudan and Afghanistan in response to
those governments' alleged complicity in the bombings of the U.S.
embassies in Kenya and Tanzania. American claims that their actions were
motivated by lawful considerations of self-defense are suspect, and the
evidence of these governments' complicity is not well founded. More
likely, these attacks were acts of military reprisal against those states,
acts that are impermissible under the rules of modern international law.

On certain national security issues, international law provides the
preferred practical recourse in U.S. foreign policy. Two critical areas of
intense U.S. involvement stand out: the threat of transnational terrorism
and the preclusive strategy of arms control. Regarding international
terrorism, such violence has become a regular event in modern times, with
Americans and their property frequent targets. Between 1981 and 2000 the
number of terrorist attacks worldwide remained relatively consistent, with
9,170 incidents, including 422 attacks in 2000. While domestic
terrorism—such as the bombs that seriously damaged the World Trade
Center in 1993 and destroyed the Alfred P. Murrah federal building in
Oklahoma City in 1995—is a matter for American civil authorities,
concern over transnational terrorism has escalated in U.S. foreign policy
priorities. These worries not only pertain to conventional problems such
as bombing and kidnapping but also to the possibility that terrorists
might use chemical, biological, or nuclear weapons against a city in the
United States.

Accordingly, the United States has assumed the leading role in
establishing specific prohibitions against such violent acts through the
negotiation of special international legal agreements. Chiefly toward this
end, American negotiators, beginning in 1970, have proposed international
legal instruments that stipulate not only the unlawful nature of terrorist
acts but also the fundamental requirement for governments to prosecute
persons who perpetrate such acts, or at least extradite accused offenders
to those states who will. Outstanding among U.S.-inspired agreements to
outlaw and prosecute criminal acts of transnational terrorism are the
following instruments: the 1963 Tokyo Convention on Offenses and Certain
Other Acts Committed on Board Aircraft (171 contracting states); the 1970
Hague Convention for the Suppression of Unlawful Seizure of Aircraft (173
contracting states); the 1971 Montreal Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation (174 contracting
states); the 1973 Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons, including Diplomatic Agents
(107 contracting states); the 1979 International Convention Against the
Taking of Hostages (75 contracting states); the 1980 Convention on the
Physical Protection of Nuclear Materials (69 contracting states); the 1988
Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation (53 contracting states) and its protocol to suppress
unlawful acts against the safety of fixed platforms on the continental
shelf (49 contracting states); and the 1991 Convention on the Marking of
Plastic Explosives for the Purpose of Detection (67 contracting states).
Importantly, though, the United States by 2001 had yet to become a
contracting party to the 1998 International Convention for the Suppression
of Terrorist Bombings (24 contracting states) or the 1999 Convention for
the Suppression of the Financing of Terrorism (3 contracting states).
Through these legal means, U.S. foreign policy sought to integrate the
moral aspiration of protecting innocent people with a pragmatic approach
that provides diplomatically available international channels for
political cooperation and legal prosecution of persons accused of such
offenses.

To regulate the use of force and weapons systems in interstate relations,
U.S. foreign policy has assumed a highly pragmatic approach. The end goal
of policy might appear idealistic (to promote international peace and
national security through disarmament), but the means taken are clearly
more realistic in their intent and application (to negotiate instruments
for arms control guided by President Reagan's maxim of
"trust but verify"). The United States has thus employed
diplomacy to create legal rules so as to promote greater order and
stability in interstate relations, thereby contributing to its own
national security. Nowhere is this strategy more apparent than in efforts
to control the use and spread of weapons of mass destruction globally and,
more particularly, in its bilateral relationship with the former Soviet
Union, now Russia. To assist in curbing proliferation of various weapons,
the United States was instrumental in drafting, negotiating, and promoting
numerous international agreements.

Through negotiation of international legal instruments, the U.S.
government has put limitations on the types and power of weapons
permissible in national arsenals. What makes the U.S.-led negotiation of
these agreements even more impressive is that many states have become
legally obligated to most of them, simply because they realize these
limitations best serve their national interests. The United States is
party and legally obligated to all of the following: The 1963 Limited Test
Ban Treaty, which bans tests in the atmosphere, outer space, and under
water (124 contracting parties); the 1968 Nonproliferation Treaty, which
prohibits selling, giving, or receiving nuclear weapons (189 contracting
states); the 1971 Seabed Arms Control Treaty, which bans placement of
nuclear weapons in or under the deep seabed (99 contracting states); the
1972 Biological and Toxin Weapons Convention, which bans the production
and possession of biological weapons (143 contracting states); the 1972
Strategic Arms Limitation Talks Treaty (SALT I), which limits the number
and types of U.S. and Soviet nuclear weapons; the 1972 Anti-Ballistic
Missile Treaty, the pact between the United States and Soviet Union that
sets limits on antiballistic missile testing and deployment; the 1976
Environmental Modification Convention, which bans modification of the
environment as a form of warfare (66 contracting states); the 1979 SALT II
Treaty, which limits the number and types of U.S. and Soviet strategic
weapons; the 1987 Intermediate-Range Nuclear Forces (INF) Agreement, which
eliminates all U.S. and Soviet missiles with ranges between 500 and 5,500
kilometers; the 1987 Missile Technology Control Regime, which limits
transfer of missiles or missile technology (25 contracting states); the
1991 Strategic Arms Limitation Talks agreement (START I), which reduces
strategic nuclear forces between the United States and the Soviet Union,
Belarus, Kazakhstan, Russia, and the Ukraine; the 1992 Chemical Weapons
Convention, which bans possession of chemical weapons after the year 2005
(143 contracting states); and the 1993 START II agreement that reduces
U.S. and Russian strategic nuclear forces.

Notable exceptions cloud U.S. practice and highlight the force of
pragmatic realism over multilateral legalism. The U.S. Senate in 1999
rejected the Comprehensive Nuclear Test Ban Treaty (77 contracting
states), largely for reasons of partisan politics and to ensure that the
ability to test nuclear weapons would be available to the United States so
as to maintain nuclear parity with other states. Nor has the United States
contracted to the Convention on the Prohibition of Anti-Personnel Mines
(117 contracting states), because of the deterrent value of landmines for
protecting U.S. troops in South Korea. Unilateral exceptionalism,
ostensibly on pragmatic security grounds, reemerged in the presidency of
George W. Bush. The Bush administration indicated that it would withdraw
from the 1972 Anti-Ballistic Missile Treaty with Russia so that the United
States may go forward with testing and deployment of a space-based missile
system to protect America from an attack by a "rogue state"
armed with nuclear missiles. Moreover, the Bush administration announced
in 2001 that the United States opposed a UN treaty to limit the
international sale of small arms, because the accord would constrain the
legitimate weapons trade and infringe on the right of American citizens to
bear arms. The fact that the United States is the leading exporter of such
weapons, selling $1.2 billion of the estimated $6 billion worldwide total,
seems a more pragmatic explanation of that policy decision.

Such international legal agreements demonstrate the American recourse to
legalism, but they are steeped in motives of pragmatism and realism. A
treaty in and of itself cannot prevent the use of any weapon by any party,
no more than domestic laws can prevent a person from using a handgun to
rob a bank or commit murder. Still, multilateral agreements articulate
rules and norms that states are expected to follow in their conduct. If
all contracting parties adhered to all these legal rules all of the time,
the possibility of these weapons being used would be considerably reduced,
and the prospects for obtaining international peace and security would be
greatly enhanced. Once again, the motivations for U.S. foreign policy
emerge as a national blend of realistic pragmatism and idealistic
legalism, the success of which ultimately rests in the political will of
the involved governments.

The blend of pragmatism with recourse to multilateral legalism is also
well illustrated in issues concerning conservation of natural resources
and protection of the biosphere. As the greatest industrial superpower in
history, the United States consumes 35 percent of the world's
energy resources and emits nearly 25 percent of the world's carbon
dioxide. American economic consumption at home generates serious
environmental repercussions abroad. Since 1960 the U.S. government, along
with other states and international organizations, has grown more attuned
to how burgeoning industrial output affects its own air, water, and land
area, as well as how international legal agreements might best be
fashioned to minimize the corrosive impacts of industrialization on the
earth's environment beyond the limits of national jurisdiction. To
these ends more than five hundred multilateral agreements have been
concluded on conservation and protection of the biosphere, many done with
vigorous U.S. participation in UN-sponsored conferences. The obligatory
presumption underpinning these instruments is that governments and
individuals must use the biosphere responsibly, on the theory that it
belongs to no one individually and to everyone collectively. These views
are crystallized in multilateral agreements negotiated as legal regimes to
govern national activities in global common areas, that is, in those
spaces such as the oceans, Antarctica, and the atmosphere. Importantly,
the United States is formally obligated to most of these legal regimes.

The legal status of the world's oceans has been a legal concern for
four hundred years, though more recent attention has focused on how best
to use them without causing pollution, resource depletion, or harm to
living creatures. The first global effort to codify the oceans'
legal status came in 1958 with the promulgation of the four 1958 Geneva
Conventions on the Law of the Sea. The United States assumed the pivotal
role in drafting these agreements. When advances in technology overwhelmed
the relevance of these instruments, the United Nations in 1973 convened a
complex, protracted series of negotiations to recodify ocean law. Again,
the United States assumed the central role in these negotiations, which in
1982 produced the UN Convention on the Law of the Sea. This framework
convention seeks to regulate issues of offshore territorial jurisdiction,
ownership of the continental shelf region, exploration and exploitation of
living and nonliving resources in the ocean and on the deep seabed, as
well as protection of the marine environment. The convention defines
coastal zones, establishes an International Seabed Authority to regulate
mining on the ocean floor beyond the limits of national jurisdiction, and
provides for sharing revenues derived from such operations.

For modern ocean law, the 1982 convention rules the waves for most
nations. Yet the United States has remained resistant to becoming a party
to this agreement, principally because of the deep seabed issue. The
United States possesses the most advanced seabed mining technology and
would contribute the most dues to the authority's operations, which
would likely most benefit developing countries. On these grounds some U.S.
senators argued vigorously during the 1980s against the treaty, although
since the treaty entered into force in 1994, those objections have largely
waned. In this respect the U.S. role in the modern law of the sea
inculcates an ideological struggle in the American mind between the
benefits of international legalism versus unilateral exceptionalism, as
well as the virtues of economic liberalism versus international socialism.
The irony is that, over the course of nearly a decade, the United States
contributed more legal wherewithal and technical insights to the
negotiation of this convention than any other government. In the end, the
fundamental issue came down to that of sovereign self-interest versus
international common interest, and in this case, sovereign self-interest
appears to have won out.

Nevertheless, U.S. foreign policy was essential for forging many other
treaties that contributed to more orderly use of ocean space. Among these
were the 1946 International Convention for the Regulation of Whaling; the
1969 International Convention on Civil Liability for Oil Pollution Damage;
the 1973 International Convention for the Prevention of Pollution from
Ships, with its protocol of 1978 (MARPOL 73/78) and six annexes; the 1972
Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, with its 1996 protocol; the 1966 Load Line Convention; the
1974 Safety of Life at Sea Convention; and the 1972 International
Convention on the International Regulations for Preventing Collisions at
Sea. In addition, the United States figured mightily in the negotiation of
two other major ocean conservation documents, the 1993 UN Food and
Agriculture Organization Agreement to Promote Compliance with
International Conservation and Management Measures by Fishing Vessels on
the High Seas; and the 1995 Agreement for the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks.

In the case of Antarctica, the United States remains key as the
contributor to forming new rules for administering the legal regime there.
The Treaty on Antarctica was largely an American inspiration and
culminated on 1 December 1959 from a special negotiating conference of
twelve states in Washington, D.C. The United States also emerged as the
critical influence in producing three other agreements that comprise the
modern Antarctic Treaty System. These are the 1972 Convention on the
Conservation of Antarctic Seals, which protects Antarctic seals from being
harvested; the 1980 Convention on the Conservation of Antarctic Marine
Living Resources, designed to conserve krill, fish, birds, and other
marine life in the Southern Ocean; and the 1991 Protocol to the Antarctic
Treaty on the Protection of the Antarctic Environment, which establishes
the norms, rules, and procedures that Antarctic Treaty contracting parties
must apply to their activities in the region. Each instrument was
negotiated and entered into force with full U.S. concurrence, because
protection of the environment and conservation of Antarctic resources are
perceived as best serving long-term U.S. national interests. In this
regard, elements of pragmatism stand out in U.S. policy. But what also
stands out is the important proclivity toward multilateral legalism that
is idealistically intended to secure environmental protection and resource
conservation in the region. For U.S. interests to be best protected, other
governments concerned with Antarctic matters must be likewise legally
bound. Only multilateral agreements, as opposed to exceptionalist,
unilateral initiatives, can suitably attain that purpose.

A quartet of instruments comprises the regime for regulating the
protection of the atmosphere by eliminating or stabilizing anthropogenic
emissions of substances that threaten its environment. The first of these,
the 1985 Vienna Convention for the Protection of the Ozone Layer, was
instigated and promoted mainly by the United States. This treaty aims to
protect human health and the environment against the adverse effects of
modification of the ozone layer. Its 1987 Montreal Protocol, which entered
into force with strong support from the U.S. government, was negotiated to
institute precautionary measures to control global emissions of substances
that deplete the ozone layer. The UN Framework Convention on Climate
Change, a product of the 1992 Earth Summit at Rio de Janeiro, seeks to
regulate the level of greenhouse gases contaminating the atmosphere in
order to avoid creating climate changes that impede economic development
worldwide. Its companion instrument, the 1997 Kyoto Protocol, was
negotiated as a means to implement the framework global warming
convention. Even though U.S. industry is responsible for producing 25
percent of the world's greenhouse gas emissions, the administration
of George W. Bush indicated in 2001 that it would not participate further
in negotiations on the Kyoto Protocol, mainly because the economic price
paid by U.S. industry was considered unfairly too high, especially given
that India and China were not participating and developing countries were
exempt from the protocol's restrictive terms.

By 2001 the United States had not accepted the 1992 Convention on
Biological Diversity, which aims to conserve and promote sustainable use
of biodiversity resources. Although 180 other states had ratified this
accord, the United States rejected it on grounds that it encourages
"equitable sharing of benefits" arising out of the use of
genetic resources and "appropriate" transfer of technology,
while taking into account rights over such resources. The legal logic here
supposes that, as the largest developer of biotechnology industries, the
United States stands to lose most from these obligations. These costs are
seen as not worth the price of legal agreement. Nor had the United States
contracted to the 1989 Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal, ostensibly because
critical terms in the agreement were left vague and open to
interpretation. Rejection of the Basel Convention more likely came because
U.S. industry is the world's largest exporter and importer of
precious-metal wastes and scrap and would be severely affected by the
accord's legal restrictions.

An attitude of exceptionalism for the world's largest consumer and
greatest polluter cannot produce benefits for the planet's
environment. To correct this, the United States has contracted to three
important agreements: the 1973 Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), which seeks to protect
certain species from overexploitation by a system of import-export
permits; the 1979 Geneva Convention on Long-Range Transboundary Air
Pollution, which aims to limit the discharge of air pollutants, especially
sulfur dioxide, that cause distant damage in other states; and the 1992 UN
Convention to Combat Desertification, which strives to halt spreading
desert lands.